2017 was a bad year for the Internet. Journalists trying to get to the bottom of the Russian election meddling story discovered pathologies of the Internet’s attention economy that legal and media scholars have been writing about for several years. From filter bubbles and clickbait to revenge porn and “fake news,” the antisocial effects of social media are now front and center in a serious public debate about the future of the Internet and the firms that have come to dominate it. As the public learns more about the ease with which the Internet’s most popular platforms can be exploited to harass, deceive, and manipulate their users, there is a growing consensus that the Internet is broken and that tech titans dominating the Internet’s edge are largely to blame.
The drumbeat for a regulatory response is getting louder. And it’s coming from points across the political spectrum. Some are calling for interventions in the area of antitrust law. Others have proposed imposing at the Internet’s application layer content neutrality rules that have historically applied only at the network layer. To describe such rules, conservative activist Phil Kerpen coined the term “layer-neutral net neutrality.” Supporters of this approach assert that rules requiring social media platforms to behave like network infrastructure providers in their handling of users’ content will enhance freedom of expression and limit the role of dominant platforms as gatekeepers of the privatized public sphere. Former Democratic Senator Al Franken offered the same rationale in an op-ed in The Guardian. Franken wrote that “no one company should have the power to pick and choose which content reaches consumers and which doesn’t. And Facebook, Google, and Amazon—like ISPs—should be ‘neutral’ in their treatment of lawful information and commerce on their platforms.”
This article is a high-level effort to explain, in terms of both regulatory history and shifting public attitudes about online speech, why adopting a must-carry obligation for social media platforms is not what the Internet needs now. Such a requirement would more likely exacerbate than remediate social media’s current problems with information quality and integrity. Part I discusses the historical layer-consciousness of Internet regulation and explains the public policies underlying differential treatment of “core” and “edge” services. Part II considers evolving speech norms at the Internet’s edge and the increasing pressure on social media platforms to more actively address some demonstrable failures in social media’s “marketplace of ideas.” Part III argues that a must-carry rule for social media platforms is precisely the wrong regulatory approach for addressing those failures. The better prescription, I argue, is to breathe new life into the underused “Good Samaritan” provision in § 230 of the Communications Decency Act, which was intended to protect and promote good faith content moderation at the Internet’s edge. What the Internet needs now is not layer-neutral net neutrality; it is an awakening to what James Grimmelmann has called “the virtues of moderation.”
Download the full article at SSRN.